TO PLEAD. The formal entry of the defendant's defence on the record.
In a popular sense, it signifies the argument in a cause, but it is not so used
by the profession. Steph. Pl. Appex. note I; Story, Eq. Pl. §5, note.
PLEADING, practice. The statement in a logical, and legal form, of the
facts which constitute the plaintiff's cause of action, or the defendant's
ground of defence; it is the formal mode of alleging that on the record, which
would be the support, or the defence of the party in evidence. 8 T. R. 159;
Dougl. 278; Com. Dig. Pleader, A; Bac. Abr. Pleas and Pleading; Cowp. 682-3. Or
in the language of Lord Coke, good pleading consists in good matter pleaded in
good form, in apt time, and due order. Co. Lit. 303. In a general sense, it is
that which either party to a suit at law alleges for himself in a court, with
respect to the subject-matter of the cause, and the mode in which it is carried
on, including the demand which is made by the plaintiff; but in strictness, it
is no more than setting forth those facts or arguments which show the justice or
legal sufficiency of the plaintiff's demand, and the defendant's defence,
without including the statement of the demand itself, which is contained in the
declaration or count. Bac. Abr. Pleas and Pleading.
2. The science of pleading was designed only to render the facts of each
party's case plain and intelligible, and to bring the matter in dispute between
them to judgment. Steph. Pl. 1. It is, as has been well observed, admirably
calculated for analyzing a cause, and extracting, like the roots of an equation,
the true points in dispute; and referring them with all imaginable simplicity,
to the court and jury. 1 Hale's C. L. 301, n
3. The parts of pleading have been considered as arrangeable under two heads;
first, the regular, or those which occur, in the ordinary course of a suit; and
secondly, the irregular, or collateral, being those which are occasioned by
mistakes in the pleadings on either side.
4. The regular parts are, 1st. The declaration or count. 2d. The plea, which
is either to the jurisdiction of the court, or suspending the action, a's in the
case of a parol demurrer, or in abatement, or in bar of the action, or in
replevin, an avowry or cognizance. 3d . The replication, and, in case of an
evasive plea, a new assignment, or in replevin the plea in bar to the avowry or
cognizance. 4th. The rejoinder, or, in replevin, the replication to the plea in
bar. 5th. The sur-rejoinder, being in replevin, the rejoinder. 6th. The
rebutter. 7th. The sur-rebutter. Vin. Abr. Pleas and Pleading, C; Bac. Abr.
Pleas and Pleadings, A. 8th. Pleas puis darrein continuance, when the matter of
defence arises pending the suit.
6. The irregular or collateral parts of Pleading are stated to be, 1st.
Demurrers to Illly art of the pleadings above mentioned. 2dly. Demurrers to
evidence given at trials. 3dly. Bills of exceptions. 4thly. Pleas in scire
facias. And, 5thly. Pleas in error. Vin. Abr. Pleas and Pleadings, C.; Bouv.
Inst. Index, h. t.
PLEADING, SPECIAL. By special pleading is meant the allegation of
special or new matter, as distinguished from a direct denial of matter
previously alleged on the opposite side. Gould on Pl. c. 1, s. 18.
PLEAS OF THE CROWN, Eng. law. This phrase is now employed to signify
criminal causes in which the king is a party. Formerly it signified royal causes
for offences of a greater magnitude than mere misdemeanors. These were left to
be tried in the courts of the barons, whereas the greater offences, or royal
causes, were to be tried in the king's courts, under the appellation of pleas of
the crown. Robertson's Hist. of Charles V., vol. 1, p. 48.
PLEAS POLL, Engl. practice. A record which contains the declaration,
plea, replication, rejoinder, and other pleadings, and the issue. Eunom. Dial.
2, §29, p. 111.
PLEBEIAN. One who is classed among the common people, as distinguished
from the nobles. Happily in this country the order of nobles does not exist.
PLEBEIANS. One of the divisions of the people in ancient Rome; that
class which was composed of those who were not nobles nor slaves. Vide Smith's
Dic. Gr. & Rom. Antiq. art. Plebes.
PLEBISCIT, civil law. This is an anglicised word from the Latin
plebiscitum, which is composed or derived from plebs and scire, and signifies,
to establish or ordain.
2. A plebiscit was a law which the people, separated from the senators and
the patricians, made on the requisition of one of their magistrates, that is, a
tribune. Inst. 1, 2, 4.
PLEDGE or PAWN, contracts. These words seem indifferently used to
convey the same idea. Story on Bailm. §286.
2. In the civil code of Louisiana, however, they appear not to have exactly
the same meaning. It is there said that pledges are of two kinds, namely, the
pawn, and the antichresis. Louis'. Code, art. 3101.
3. Sir William Jones defines a pledge to be a bailment of goods by a debtor
to his creditor, to be kept till the debt is discharged. Jones' Bailm. 117; Id.
36. Chancellor Kent, 2 Kent's Com. 449, follows the same definition, and see 1
Dane's Abr. c. 17, art. 4. Pothier, De Nantissement, art. prelim. 1, defines it
to be a contract by which a debtor gives to his creditor a thing to detain as
security for his debt. The code Napoleon has adopted this definition, Code Civ.
art. 2071, and the Civil Code of Louisiana has followed it. Louis. Code, 3100.
Lord Holt's definition is, when goods or chattels are delivered to another as a
pawn, to be security for money borrowed of him by the bailor - and this, he
adds, is called in Latin vadium, and in English, a pawn or pledge. Ld. Raym.
4. The foregoing definitions are sufficiently descriptive of the nature of a
pawn or pledge but they are in terms limited to cues where a thing is given as a
security for a debt; but a pawn may well be made as security for any other
engagement. 2 Bulst. 306; Pothier, De Nantissement, n. 11. The definition of
Domat is, therefore, more accurate, because it is more comprehensive, namely,
that it is an appropriation of the thing given for the security of an
engagement. Domat, B. 3, tit. 1, §1, n. 1. And, according to Judge Story, it may
be defined to be a bailment of personal property, as security for some debt or
engagement. Story on Bailm. §286.
5. The term pledge or pawn is confined to personal property; and where real
or personal property is transferred by a conveyance of the title, as a security,
it is commonly denominated a mortgage.
6. A mortgage of goods is, in the common law, distinguishable from a mere
pawn. By a grant or a conveyance of goods in gage or mortgage, the whole legal
title passes conditionally to the mortgagee; and if not redeemed at the time
stipulated, the title becomes absolute at law, though equity will interfere to
compel a redemption. But in a pledge a special property only passes to the
pledges, the general property remaining in the pledger. 1 Atk. 167; 6 East, 25;
2 Caines' C. Err. 200; 1 Pick. 889; 1 Pet. S. C. B. 449 2 Pick. R. 610; 5 Pick.
R. 60; 8. Pick. R. 236; 9 Greenl. R. 82; 2 N. H. Rep. 13; 5 N. H. Rep. 545; 5
John. R. 258; 8 John. R. 97; 10 John. R. 471; 2 Hall, R. 63; 6 Mass. R. 425; 15
Mass. R. 480. A mortgage may be without possession, but a pledge cannot be
without possession. 5 Pick. 59, 60; and see 2 Pick. 607.
7. Things which are the subject of pledge or pawn are ordinarily goods and
chattels; but money, negotiable instruments, choses in action, and indeed any
other valuable thing of a personal nature, such as patent-rights and
manuscripts, may, by the common law, be delivered in pledge. 10 Johns. R. 471,
475; 12 Johns. R. 146; 10 Jonhs. R. 389; 2 Blackf. R. 198; 7 Greenl. R. 28; 2
Taunt. R. 268; 13 Mass. 105; 15 Mass. 389; Id. 534; 2 Caines' C. Err. 200; 1
Dane's Abr. ch. 17, art. 4, § ii. See Louis. Code, art. 3121.
8. It is of the essence of the contract, that there should be an actual
delivery of the thing. 6 Mass. 422; 15 Mass. 477 14 Mass. 352; 2 Caines' C. Err.
200; 2 Kent's Com. 452; Bac. Abr. Bailment, B; 2 Rolle R. 439; 6 Pick. R. 59,
60; Pothier, De Nantissement, n. 8, 9; Louis. Code, 3129. What will amount to a
delivery, is matter of law. See Delivery.
9. It is essential that the thing should be delivered as a security for some
debt or engagement. Story on Bailm. §300. And see 3 Cranch, 73; 7 Cranch, 34; 2
John. Ch. R. 309; 1 Atk. 236; Prec. in Ch. 419; 2 Vern. 691; Gilb. Eq. R. 104; 6
Mass. 339; Pothier, Nantissement, n. 12; Civ. Code of Lo. art. 3119; Code Civ.
10. In virtue of the pawn the pawnee acquires, by the common law, a special
property in the thing, and is entitied to the possession of it exclusively,
during the time and for the objects for which it is pledged. 2 Bl. Com. 396;
Jones' Bailm. 80; Owen R. 123, 124; 1 Bulst. 29; Yelv. 178 Cro. Jac. 244; 2 Ld.
Raym. 909, 916; Bac. Abr. Bailment, B; 1 Dane's Abr. ch. 17, art. 4, SSSS 1, 6;
Code Civ. art. 2082; Civ. Code of Lo. art. 3131. And he has a right to sell the
pledge, when there has been a default in the pledger in complying with his
engagement. Such a default does not divest the general property of the pawner,
but still leaves him a right of redemption. But if the, pledge is not redeemed
within the stipulated time, by a due performance of the contract for which it is
a security, the pawnee has then a right to sell it, in order to have his debt or
indemnity. And if there is no stipulated time for the payment of the debt, but
the pledge is for an indefinite period, the pawnee has a right, upon request, to
a prompt fulfilment of the agreement; and if the pawner refuses to comply, the
pawnee may, upon demand and notice to the pawner, require the pawn to be sold. 2
Kent's Com. 452; Story on Bailm. 308.
11. The pawnee is bound to use ordinary diligence in keeping the pawn, and
consequently is liable for ordinary neglect in keeping it. Jones'-Bailm. 75; 2
Kent's Com. 451; 1 Dane's Abr. ch. 17, art. 12; 2 Ld. Raym, 909, 916; Domat B 1,
tit. 1, §4, n. 1.
12. The pawner has the right of redemption. If the pledge is conveyed by way
of mortgage, and thus passes the legal title, unless he redeems the pledge at a
stipulated time, the title of the pledge becomes absolute at law; and the
pledger has no remedy at law, but only a remedy in equity to redeem. 2 Ves. Jr.
378; 2 Caines' C. Err. 200. If, however, the transaction is not a transfer of
ownership, but a mere pledge, as the pledger has never parted with the general
title, he may, at law, redeem, notwithstanding he has not strictly complied with
the condition of his contract. Com. Dig. Mortgage, B; 1 Pow. on Mortg. by
Coventry & Land. 401, and notes, ibid. See further, as to the pawner's right
of redemption, Story on Bailm. §§345 to 349.
13. By the act of pawning, the pawner enters into an implied agreement or
warranty that he is the owner of the property pawned, and that he has a good
right to pass the title. Story on Bailm. §354.
14. As to the manner of extinguishing the contract of pledge or mortgage of
personal property, see Story on Bailm. 359 to 366.
PLEDGE, contracts. He who becomes security for another, and, in this
sense, every one who becomes bail for another is a pledge. 4 Inst. 180 Com. Dig.
B. See Pledges.
PLEDGER. The same as pawner. (q. v.)
PLEDGEE. The same as pawnee. (q. v.)
PLEDGES, pleading. It was anciently necessary to find pledges or
sureties to prosecute a suit, and the names of the pledges were added at the
foot of the declaration; but in the course of time it became unnecessary to find
such pledges because the plaintiff was no longer liable to be amerced, pro falsa
clamora, and the pledges were merely nominal persons, and now John Doe and
Richard Roe are the universal pledges; but they may be omitted altogether; 1
Tidd's. Pr. 455; Arch. Civ. Pl. 171; or inserted at any time before judgment. 4
PLEGIIS ACQUIETANDIS, WRIT DE. The name of an ancient writ in the
English law, which lies where a man becomes pledge or surety for another to pay
a certain sum of money at a certain day; after the day, if the debtor does not
pay the debt, and the. surety be compelled to pay, he shall have this writ to
compel the debtor to pay the same. F. N. B. 321.
PLENA PROBATIO. A term used in the civil law, to signify full proof,
in contradistinction to semi-plena probatio, which is only a presumption. Code,
4, 19, 5, &c. 1 Greenl. Ev. §119.
PLENARTY, eccl. law. Signifies that a benefice is full. Vide
PLENARY. Full, complete.
2. In the courts of admiralty, and in the English ecclesiastical courts,
causes or suits in respect of the different course of proceeding in each, are
termed plenary or summary. Plenary, or full and formal suits, are those in which
the proceedings must be full and formal: the term summary is applied to those
causes where the proceedings are more succinct and less formal. Law's Oughton,
41; 2 Chit. Pr. 481.
PLENE ADMINISTRAVIT, pleading. A plea in bar entered by an executor or
administrator by which he affirms that he had not in his possession at the time
of the commencement of the suit, nor has had at any time since any goods of the
deceased to be administered; when the plaintiff replies that the defendant had
goods, &c., in his possession at that time, and the parties join issue, the
burden of the proof will be on the plaintiff. Vide 15 John. R. 323; 6 T. R. 10;
1 Barn. & Ald. 254; 11 Vin. Ab. 349; 12 Vin. Ab. 185; 2 Phil. Ev. 295; 3
Saund. (a) 315, n. 1; 6 Com. Dig. 311.
PLENE ADMINISTRAVIT PRAETERt. This is the usual plea of plene
administravit, except that the defendant admits a certain amount of assets in
PLENE COMPUTAVIT, pleading. A plea in an action of account render, by
which the defendant avers that he has fully accounted. Bac. Ab. Accompt, E. This
plea does not admit the liability of the defendant to account. 15 S. & R.
PLENIPOTENTIARY. Possessing full powers; as, a minister
plenipotentiary, is one authorized fully to settle the matters connected with
his mission, subject however to the ratification of the government by which he
is authorized. Vide Minister.
PLENUM DOMINIUM. The unlimited right which the owner has to use his
property as he deems proper, without accountability to any one.
PLOUGH-BOTE. An allowance made to a rural tenant, of wood sufficient
for ploughs, harrows, carts, and other instruments of hushandry.
PLOUGH-LAND, old Eng. law. An uncertain quantity of land; but,
according to some opinions, it contains one hundred and twenty acres. Co. Litt.
TO PLUNDER. The capture of personal property on land by a public
enemy, with a view of making it his own. The property so captured is called
plunder. See Booty; Piize.
PLUNDERAGE, mar. law. The embezzlement of goods on board of a ship, is
known by the name of plunderage.
2. The rule of the maritime law in such cases is, that the whole crew shall
be responsible for the property thus embezzled, because there must be some
negligence in finding out the depredator. Abbott on Ship. 457; 3 John. Rep. 17;
1 Pet. Adm. Dee. 243; 1 New Rep. 347; 1 Pet. Adm. Dee. 200, 239.
PLURAL. A term used in grammar, which signifies more than one.
2. Sometimes, however, it may be so expressed that it means only one, as, if
a man were to devise to another all he was worth, if he, the testator, died
without children, and he died leaving one child, the devise would not take
effect. See Dig. 50, 16, 148; Id. 35, 1, 101, 1; Id. 3 1, 17, 4 Code, 6, 49, 6,
2; Shelf. on L 559, 589. See Singular.
PLURALITY, government. The greater number of votes given at an
election; it is distinguished from a majority, (q. v.) which is a plurality of
all the votes which might have been given; though in common parlance majority is
used in the sense here given to plurality.
PLURIES, practice. A term by which a writ issued subsequently to an
alias of the same kind, is denominated.
2. The pluries writ is made by adding after we command you, the words, " as
often times we have commanded you." This is called the first pluries, the next
is called the second pluries, &c.;
POINDING, Scotch. law. That diligence, affecting movable subjects, by
which their property is carried directly to, the creditor. Poinding is real or
personal. Ersk. Pr. L. Scot. 3, 6, 11.
POINDING, PERSONAL, Scotch law. Poinding of the goods belonging to the
debtor; and of those goods only.
2. It may have for its warrant either letters of horning, containing a clause
for poinding, and then it is executed by messengers; or precepts of poinding,
granted by sheriffs, commissaries, &c., which are executed by their proper
officers. No cattle pertaining to the plough, nor instruments of tillage, can be
poinded in the time of laboring or tilling the ground, unless where the debtor,
has no other goods that may be poinded. Ersk. Pr. L. Soot. 3, 6, 11. See
Distress, to which this process is somewhat similar.
POINDING, REAL, or poinding of the ground, Scotch law. Though it be
properly a diligence, this is generally considered by lawyers as a species of
real action, and is so called to distinguish it from personal poinding, which is
founded merely on an obligation to pay.
2. Every debitum fundi, whether legal or conventional, is a foundation for
this action. It is therefore competent to all creditors in debts which make a
real burden on lands. As it proceeds on a, real right, it may be directed
against all goods that can be found on the lands burdened but, 1. Goods brought
upon the ground by strangers are not subject to this diligence. 2. Even the
goods of a tenant cannot be poinded for more than his term's rent, Ersk. Pr. L.
Scot. 4, 1, 3.
POINT, practice. A proposition or question arising in a case.
2. It is the duty of a judge to give an opinion on every point of law,
properly arising out of the issue, which is propounded to him. Vide Resolution.
POINT RESERVED. A point or question of law which the court, not being
fully satisfied how to decide, in the hurried trial of a cause, rules in favor
of the party offering it, but subject to revision on a motion for a new trial.
If, after argument, it be found to have been ruled correctly, the verdict is
supported; if otherwise, it is set aside .
POINTS, construction. Marks in writing and in print, to denote the
stops that ought to be made in reading, and to point out the sense.
2. Points are not usually put in legislative acts or in deeds: Eunom. Dial.
2, §33, p. 239; yet, in construing them, the courts must read them with such
stops as will give effect to the whole. 4 T. R. 65.
3. The points are the comma, the semi-colon, the colon, the full point, the
point of interrogation and exclamation. Barr. on the Stat. 294, note; vide
POISON, crim. law. Those substances which, when applied to the organs
of the body, are capable of altering or destroying, in a majority of cases, some
or all of the functions necessary to life, are called poisons. 3 Fodere, Traite
de Med. Leg. 449; Guy, Med. Jur. 520.
2. When administered with a felonious intent of committing , murder, if.
death ensues, it is murder the most detestable, because it can of all others, be
least prevented by manhood or forethought. It is a deliberate act necessarily
implying malice. 1 Russ. Cr. 429. For the signs which indicate poisoning, vide 2
Beck's Med. Jurisp. ch. 16, p. 236, et seq.; Cooper's Med. Jurisp. 47; Ryan's
Med. Jurisp. ch. 15, p. 202, et seq.; Traill, Med. Jur. 109.
POLE. A measure of length, equal to five yards and a half. Vide